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Michael Klarman, Neither Hero nor Villain: The Supreme Court, Race, and the Constitution in the Twentieth Century: Chapter 1: The Plessy Era (U. Va. Sch. of L., Legal Studies Working Papers Series, Working Paper No. 99-3a, June 1999).

Abstract: Chapter 1 of my forthcoming book is on the Plessy era. It discusses four sets of issues -- racial segregation, disfranchisement, black exclusion from juries, and the separate-and-unequal issue raised in Cumming (1899). The purpose of the book is to situate Supreme Court decisions within the broader sociopolitical context of the time. My conclusions from this first chapter are as follows. First, the Justices' performance during the Plessy era confirms the limited capacity of the Supreme Court to protect minorities from majoritarian oppression. Second, the text of the Constitution and legal precedent construing it were sufficiently indeterminate to accommodate the Justices' racial inclinations. Third, "subconstitutional" rules governing issues like the standard of proof for establishing a constitutional violation, conditions of access to federal courts, and standards of federal court review of state court fact findings are as important to the effective enforcement of constitutional rights as are their formal declaration. Fourth, even had the Plessy Court been more committed to the pursuit of racial equality, there were clear limits on how much judicial intervention could have accomplished, given the lack of inclination in the national political branches to enforce aggressive pro-civil rights decisions, the fierce opposition of southern whites, and the underdeveloped bureaucratic capacity of the national government. Fifth, even had the Court broadly defined the constitutional rights of blacks, and these decisions had somehow been enforceable, not much of substance would have changed for southern blacks, since most of Jim Crow's legal apparatus reflected rather than produced a social reality of white supremacy.